If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

December 22, 2022

v No. 360985

St. Clair Circuit Court

ELTON JOHN THOMAS, LC No. 20-001880-FH

Defendant-Appellant.

Before: HOOD, P.J., and SWARTZLE and REDFORD, JJ.

PER CURIAM.

Defendant stole the victim’s wallet at a gas station, and he later pleaded guilty to larceny 

from a person, MCL 750.357. Defendant was sentenced to three to 20 years’ imprisonment, as a 

third-offense habitual offender, and he now argues that the trial court improperly scored 10 points 

for Offense Variable (OV) 4 because the victim did not suffer a serious psychological injury. We 

reverse and remand for proceedings consistent with this opinion. 

The victim was shopping at a gas station when defendant approached him and pickpocketed 

his wallet, which included the victim’s identification, medical cards, debit card, and hotel room 

key among other information. The victim yelled at defendant in the parking lot of the gas station 

when he noticed that his wallet was missing, and defendant pulled out the wallet.

At defendant’s sentencing, the victim provided an impact statement to express that he 

suffered psychological and emotional harm because he had to figure out how to replace all of the 

items that were lost. According to the victim this included a loss of sleep, but he did not require 

or seek any treatment. Defendant argued that this did not rise to the level of a “serious 

psychological injury requiring professional treatment” as required for OV 4. MCL 777.34. The 

trial court found that the theft “absolutely set [the victim’s] world upside down” and that 10 points 

for OV 4 were appropriate. Defendant now appeals regarding this issue.

When reviewing a trial court's decision with respect to sentencing guidelines, the trial 

court's “factual determinations are reviewed for clear error and must be supported by a 

preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). 

“Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, 
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i.e., the application of the facts to the law, is a question of statutory interpretation, which an 

appellate court reviews de novo.” Id.

MCL 777.34(1) allows a trial court to assign 10 points to OV 4 when there is a 

preponderance of evidence to establish that a “[s]erious psychological injury requiring professional 

treatment occurred to a victim.” “The trial court may assess 10 points for OV 4 if the victim 

suffers, among other possible psychological effects, personality changes, anger, fright, or feelings 

of being hurt, unsafe, or violated.” People v Armstrong, 305 Mich App 230, 247; 851 NW2d 856 

(2014). Additionally, our Supreme Court clarified that “points for OV 4 may not be assessed 

solely on the basis of a trial court’s conclusion that a serious psychologically injury would 

normally occur as a result of the crime perpetrated against the victim,” and that “evidence of fear 

while a crime is being committed, by itself, is insufficient to assess points for OV 4.” People v 

White, 501 Mich 160, 162; 905 NW2d 228 (2017).

In this case, the victim stated that his psychological injury resulted from having to deal 

with the consequences of the crime because he had to figure out how to replace all of the stolen 

items. Although the trial court found that the victim’s “world [was turned] upside down” because 

the loss of personal information is more upsetting than losing other nonidentifying personal 

property, there was nothing to substantiate that the victim’s psychological injury was not a normal 

result of the crime. Further, there is not a preponderance of evidence to support that the victim 

suffered a serious psychological injury that may require professional treatment. MCL 777.34(2).

Although the evidence provided by the victim established that he suffered a psychological injury, 

the extent of that injury did not rise to the level of “seriousness” that our legislature requires to 

score OV 4 at 10 points. Therefore, we are left with a definite and firm conviction that a mistake 

was made when assigning 10 points to OV 4.

Reversed and remanded for proceedings consistent with this opinion. We do not retain 

jurisdiction.

/s/ Noah P. Hood

/s/ Brock A. Swartzle

/s/ James Robert Redford